Mockery of Justice Verma Report

Page 1 of 1

RehanismIF-Dazzler

The UPA Govt, in a Cabinet meeting held on 1 February, has
introduced an ordinance that it claims will address the most urgent
concerns on sexual violence. In fact, the Government has been completely
reluctant to acknowledge and implement the Justice Verma Committee
recommendations: the PM refused to accept it from Justice Verma, the
Ministry of Home Affairs removed it from their website, the Govt never
adopted any transparent process of discussion to decide the way forward
on implementing the recommendations, rather they said Justice Verma
'exceeded his brief'. Now, they claim that their ordinance has
'implemented' the Justice Verma recommendations. Is this true?

The
fact is that the Government's ordinance is a mockery of the letter and
spirit of the Justice Verma recommendations. Why? Let us take a closer
look.

The Justice Verma report radically redefined
the way in which sexual violence is understood, because it firmly called
for safeguarding women's autonomy – including her sexual autonomy. This
means that sexual violence should be understood as any sexual contact
that is forced on a woman unless she has explicitly said or indicated
'Yes' to it. It is irrelevant whether she is married or not, or whether
the perpetrator is a policeman, judge, magistrate, public servant,
politician, or army officer: the accused/perpetrator cannot enjoy
impunity in any case! The ordinance completely mocks this basic
principle.

The ordinance is nothing but the Govt's old
discredited Criminal Law Amendment Bill 2012 with some extra window
dressing. What's WRONG with this ordinance?

Rejecting
Justice Verma's recommendations to ensure gender-specificity (male) of
the perpetrator of rape and gender-neutrality for victims, the ordinance makes rape a 'gender-neutral' crime. This means that a man can accuse a woman of rape!!

The ordinance criminalises
consensual sexual activity between 16-18 years; such sexual activity,
even by consent, will automatically be seen as rape. This will
give a handle to the moral-policing brigades and communities who harass
inter-caste and inter-religious friendships and relationships, by
branding young boys as 'rapists.' See what is happening in Mangalore
now: Bajrang Dal and Durga Vahini brigades have been entering ice-cream
parlours, rounding up teenage couples and handing them over to the
police; the Chhattisgarh police in Bhilai is doing the same. Such forces
will get a handle to use the rape law against boyfriends.

The ordinance refuses to include marital rape in the rape law – and it continues to give a lesser punishment for rape of a separated wife by a husband. The
Govt's press release about the ordinance shamelessly says that "Verma
criminalises marital non-consensual sexual intercourse" but the Govt
will not do so! So, according to the Govt, not every 'non-consensual'
sexual act is rape; a husband is allowed to force sex on his wife!
Even if the wife is separated from her husband, the law will be
'understanding' and 'lenient' towards him if he rapes her, since she was
'once his wife'! This means that the ordinance continues to see the wife as the husband's sexual property,
rather than as a person is her own right, with the same right to say
YES and NO to sex as any unmarried woman! We know domestic violence is
common in marriage: can't the husband who batters his wife, also rape
his wife?! Our govt is saying he will have the right to rape his wife!

The ordinance
rejects Justice Verma's recommendation of the principle of 'command
responsibility' in case of custodial rape by police or army: i.e the
principle that a superior officer will be held responsible if a junior
officer commits rape or sexual assault. This principle is
crucial if one considers the manifold cases of custodial rape like that
of Soni Sori – where a senior officer Ankit Garg ordered his juniors to
sexually torture her; or a case like Kunan Poshpora, where an entire
village of women in Kashmir was gang-raped by the Army – something that
could not have taken place without the awareness and blessings, even
orders, of higher officers!

The ordinance fails to
include sexual violence in the context of caste/communal massacres in
the category of 'aggravated sexual assault' – as recommended by Justice
Verma report (p 220).

The ordinance rejects the Justice
Verma's recommendation that no sanction be required to prosecute
judges/magistrates/public servants who are accused of sexual violence;
and similarly that the AFSPA be amended to do away with the requirement
for sanction to prosecute an army officer accused of sexual violence. Justice
Verma's argument was clear: no army officer nor any judge or public
servant can claim to have raped in the course of his duty! The
ordinance, by rejecting Justice Verma's recommendations, ensures
impunity for powerful rapists. Similarly the ordinance makes no
move to implement the electoral reforms called for by Justice Verma,
specifically against candidates and elected representatives accused of
serious sexual offences.

The ordinance introduces death penalty
in the rarest of the rare cases of rape. This is a deliberate red
herring. For one thing, death sentence is already a possibility in cases
where rape is compounded with murder. By introducing it in the rape
law, even Congress leader and advocate Abhishek Manu Singhvi, speaking
on NDTV, expressed the 'personal opinion' that this would further lower
the conviction rate because it would deter the court from sentencing! Currently,
let us remember that the Courts are reluctant even to give the minimum 7
year sentence for rape, and keep finding excuses to reduce it to as low
as 3! Will the same Courts not become even more reluctant to convict,
if conviction will mean death?

The Justice Verma
report recommended imprisonment for 5 years for a policeman who failed
to follow the law (i.e registering FIRs or proper investigation); the
ordinance admits for a jail term of just one year for this offence.

The
ordinance completely ignores the recommendations of changes in
medico-legal protocol, including prohibition of the two-finger test and
ensuring rape crisis centres and proper medical care and examination of
rape survivors; as well as police reform, public transport and other
measures.

The ordnance makes of mockery
of all those recommendations of the Justice Verma committee that
actually reflected the idea of protecting women's autonomy: be it a
16-year old girl who has sexual contact with her boyfriend to a married
woman who says no to her husband, the ordnance just fails to accept a
woman's own autonomy and consent as crucial to deciding if rape occurred
or not! The ordnance continues to make excuses for certain powerful
perpetrators of rape: it continues to ensure that certain institutions
of power (marriage/police/army/judges/magistrates/public
servants/politicians) remain protected from prosecution for rape.

We refuse to accept this eyewash! We demand full implementation of the Justice Verma Committee Report!

We
can defeat the Govt's ploy to dilute and subvert the JVC
recommendations only by being on the streets and continuing to fight!

Bekhauf
Azaadi has called for a protest against the ordinance and demanding
implementation of JVC on 4 Feb at 2 pm at Jantar Mantar. Please do join.
There will be several other protest and campaign actions in the days to
come, please do join each of them, and make sure the Govt does not get
away with betraying our movement and the JVC Report.

_Angie_IF-Rockerz

The ordinance does not give any assurance about implementation. Certainty of conviction is more effective tha the severity of punishment. There is no dearth of legal provision s in the country. Its just that they seldom get implemented soon enough! Framing of new laws that do not get enacted upon is not going to serve any purpose.

RehanismIF-Dazzler

The ordinance does not give any assurance about implementation. Certainty of conviction is more effective tha the severity of punishment. There is no dearth of legal provision s in the country. Its just that they seldom get implemented soon enough! Framing of new laws that do not get enacted upon is not going to serve any purpose.

The ordinance is basically an eyewash..It has nothing to do with Justice Verma Report. In fact it has managed to bypass the whole spirit of the report and its recommendations..The very reason why Justice Verma report was applauded from all corners was that it delved deeper than ever and sought to address the root of the problem - rather than giving in to cries of the mob for death penalty and castration. There is no reason NOT to recognize/criminalize marital rape whereas treat a consensual intercourse between a 16 year old girl and a boy as statutory rape. The whole idea of consent and woman's autonomy over her body has been thrown out of the window.

RehanismIF-Dazzler

Comparison- Ordinance Vs JVC

How UPA Govt Ordinance Undermines
the Very Spirit of Justice Verma Committee Recommendations: A Comparative
Analysis

The JVC Report

The Govt's Ordinance

1

For the first time in India, spelt out a
constitutional Bill of Rights for
women, and the means to ensure those fundamental rights to equality, freedom,
and autonomy

Ignores the Bill of Rights

2

Recognised that sexual violence is not an act of sex
or lust: it is an act of patriarchal power. Therefore, to reduce sexual violence,
we must safeguard women's freedom and rights; and to ensure that perpetrators
are punished, we must undo the impunity and protection for such offences that
is built into the laws and into our system

Maintains the inbuilt ways in which laws protect
powerful perpetrators

3

Recognised women's rights to autonomy: including her
sexual autonomy and her right to choose her partners, friends, and spouses.
Recommended changing the archaic and anti-women vocabulary of laws.
Understood sexual violence as a violation of a woman's bodily integrity and
her dignity, rather than as 'outraging modesty', 'robbing honour' or bringing
'shame'.

Has many clauses that go AGAINST women's autonomy
and freedom, and retains the anti-women wording of 'outraging modesty'
instead of molestation or sexual violence

4

Redefined the meaning of 'consent': stating that
unless a woman indicates 'Yes' to sex, either by word or by gesture, no one
can 'assume' that she consented. In the present system, many rape cases go
unpunished because a woman is 'presumed' to have consented unless she has
marks of injury on her body or on the body of the accused. She is 'presumed'
to have consented if she is married to the accused. A girl is 'presumed' to
be incapable of consent to sexual contact if she is 16-18 years old, even if
her partner is of a similar young age, unless she is married to him.
Moreover, she is 'presumed' to be lying if the man she accuses is a public
servant; a judge; a magistrate; or an army officer; that is why, in such
cases, prior permission from the Govt is needed in order to prosecute the
accused. Justice Verma sought to challenge and change these in-built, wrong
assumptions that go against justice for women.

Accepted the changed definition of 'consent' as
recommended by JVC, BUT retained many of the substantial provisions that fail
to recognise and respect women's 'consent' – in case of married women, 16-18
year-old girls, and women who complain against the powerful people such as
judges, magistrates, police officers, bureaucrats, and army officers.

5

Expanded the meaning of sexual assault to cover a
range of forms of sexual violence: from sexual harassment to stalking to
voyeurism (making MMS etc) to acid-throwing to rape by insertion of an object
or a male body part. Recommended higher and more severe punishment for
various forms of sexual violence.

Accepted expanded definition and scope of sexual
assault, and more severe punishment

6

Recognised that the victim of sexual violence
could be 'gender-neutral' (i.e could be female/male/transgender/hijra etc),
but that the perpetrator is male.

Makes the perpetrator/accused in the rape law
gender-neutral – i.e both men and women can be accused of rape. This will
mean that if a woman files a rape complaint against a man, he can file a
counter-complaint of rape against her!

7

Recognised that young people between the age of
16-18 do, naturally, indulge in sexual experimentation, and that such sexual
contact between young people by mutual consent cannot automatically be termed
'rape'.

All mutual sexual contact between young girls and
boys of the age group 16-18 is automatically termed as 'rape'. This means
that innocent young boys will face rape charges, for no crime except that
they befriended young girls of their own age. And a generation of young boys
who grow up without learning to see girls as equals and as friends, will be
more likely to be violent towards women as adults.

8

Recognises that rape happens even within marriage.
Asserted that sexual contact, even within a marriage, must be with a woman's
consent; a wife is not her husband's property, and cannot be 'expected' to
have sex with her husband, against her will. Therefore, recommended removal
of the existing exemption of 'marital rape' from the rape law. Upheld the
principle that in the case of rape and sexual assault, the relationship of
the accused with the complainant will not be the basis for denying her claim
of rape; neither can it be the basis for a more lenient sentence. Therefore
recommended deletion of the provision of lenient sentence in case of rape of a
legally separated wife by a husband.

Legitimises marital rape – i.e forced sexual contact
by husband against wife's consent. Therefore strengthens the idea of
the wife as the 'sexual property' of the husband. Retains the provision of
lesser sentence (minimum sentence of 2 years) for a husband who rapes a
legally separated wife! Therefore, even if a wife has taken the pains to
separate herself from an abusive husband, the law will make excuses for him
if he rapes her, on the grounds that she was once his wife, and so he can be
excused for thinking of her as his property! Not only that, according to
the ordinance, wives cannot accuse husbands of sexual assault – but because
of the 'gender-neutral' provision, husbands can accuse wives of sexual
assault! Not only that, husbands cannot get life sentence or death sentence
for sexual assault even of a separated wife, but a wife accused by a husband
of sexual assault, can under the ordinance get life sentence and even death
sentence!

9

Sought to get rid of protections for powerful
offenders. Recommended that politicians against whom a charge sheet has
been filed for sexual violence, be prevented from contesting elections.Recommended
that no sanction/prior permission be required to prosecute
judges/magistrates/public servants who are accused of sexual violence; and
similarly that the AFSPA be amended to do away with the requirement for
sanction/prior permission to prosecute an army officer accused of sexual
violence. Justice Verma's argument is clear: no army officer nor any
judge or public servant can claim to have raped in the course of his duty. As
in any case, the Court can be the best judge, based on available evidence, of
whether a complaint is false or true.

Continues to protect the powerful. No provisions
against candidates charged with sexual violence. Retains the requirement of
'prior permission' for prosecution of public servants/judges/magistrates/army
officers. So, no Ruchika Girotra (molested by a police officer), Geetika
Sharma or Rupam Pathak (raped by MLAs), Thangjam Manorama (raped by army
personnel) can expect justice!

10

Recommended changes in the law based on the
principle of 'command responsibility' in case of custodial rape by police or
army: i.e the principle that a superior officer will be held responsible if
he orders or knowingly allows a junior officer to commit rape or sexual
assault against a woman who is in custody, or is in a conflict area.
This principle is very important if one looks at the rape of Soni Sori
(Chhattisgarh SP Ankit Garg ordered his men to sexually torture her) or the
rape and murder of Thangjam Manorama in Manipur in the custody of personnel
of the Assam Rifles. Such rapes could not have occurred without the knowledge
and explicit orders/tacit consent of senior officers. Given the widespread
prevalence of sexual violence in conflict areas, the JVC also recommended a
review of the AFSPA, which is encouraging such violence. That AFSPA in any
case has a provision for periodic review, which has however not been done.

Senior police/army officers will not be investigated
or punished for custodial rapes that are committed at their orders or with
their knowledge in custody by their junior officers.

11

Recommended changes in the existing medical
investigation protocol for rape survivor. Recommended prohibition of the
demeaning two-finger test and other forms of medical examination that
investigate women's past sexual history. Also recommended a protocol to
ensure sensitive medical care of a rape survivor.

Does not prohibit 'two-finger test,' whereby a
doctor puts two fingers into a rape survivor's body to check if she is
'habituated to sex.' In fact, the ordinance's definition of 'rape' (Section
375) legitimises this test, by stating that penetration or touching of
private parts 'for medical purposes' (without specifying the need to obtain
prior consent of the patient) will not be considered rape. The rape
definition in the ordinance also, strangely, justifies penetration of the
body for 'hygienic' purposes – so now, many rapists can try and explain away
rape as a lesson in hygiene!

12

Recommended more judges, more courts to ensure
speedier trials and timely justice; also changes in judicial procedures to
make rape trials gender-just.

Accepts changes in judicial procedure, but does
nothing in the direction of speedier justice

13

Did not recommend death sentence.

Includes death sentence for rapes that result in
death or permanent vegetative state of the victim. In the case of death of
the victim, the provision of death sentence already exists and is nothing
new. Death sentence for causing permanent vegetative state is dangerous for
women: since the risk of hanging for murder and rape are the same, it is
likely to become an incentive for the rapist to make sure to kill the victim
so that she cannot testify against him.

14

Clearly made the Govt responsible for the failure to
protect women from violence

Disclaimer: All Logos and Pictures of various Channels, Shows, Artistes, Media Houses, Companies, Brands etc. belong to their respective owners, and are used to merely visually identify the Channels, Shows, Companies, Brands, etc. to the viewer. Incase of any issue please contact the webmaster.